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The management of solid and hazardous wastes is primarily governed by the federal Solid Waste Disposal Act (SWDA) as amended by the Resource Conservation and Recovery Act (RCRA). 42 U.S.C. secs. 6901-6992k. The Act provides detailed standards for the management of wastes, particularly "cradle-to-grave" regulation of RCRA hazardous wastes. The Pollution Prevention Act of 1990 (PPA) announced a national policy favoring waste reduction over waste management. 42 U.S.C. secs. 13102-13109.
A solid waste is "any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities," but excludes domestic sewage, irrigation return flows, point source discharges permitted under the Clean Water Act, and certain radioactive wastes. 42 U.S.C. sec. 6903(27).
The management of non-hazardous solid waste is primarily the responsibility of municipal or county governments. Federal involvement in the management of non-hazardous solid waste is limited to: establishing guidelines for state and regional solid waste management plans, prohibiting disposal of solid waste in landfills that do not meet certain federal standards, permitting solid waste landfills, and regulating the transport of solid waste in coastal waters.
State and Regional Solid Waste Management Plans
The federal government provides financial and technical assistance to states and regions that adopt and implement comprehensive solid waste management plans that meet certain federal guidelines. 42 U.S.C. secs. 6942-6949a; 40 C.F.R. pt. 256 (criteria for the plan).
Solid Waste Landfills
The Environmental Protection Agency (EPA) has issued specific standards for the operation and design of all solid waste landfills. Any landfill that does not meet these standards is deemed an "open dump" and is prohibited. Non-hazardous solid waste, including household wastes, may not be disposed of in open dumps. Special requirements apply to municipal solid waste landfills that receive hazardous wastes from household or small quantity generators, which are excluded from coverage under the hazardous waste regulations of RCRA. The municipal landfill regulations include detailed standards for location, design, operation, maintenance, closure and post-closure, financial assurance, groundwater monitoring, and corrective action. 40 C.F.R. pt. 258. Pursuant to the Land Disposal Flexibility Act, a 1996 amendment to RCRA, small municipal solid waste landfills located in dry, remote areas are exempt from ground water monitoring requirements unless there is evidence of ground water contamination. Pub. L. No. 104-119, 110 Stat. 830 (1996).
Solid Waste Incinerators
The 1990 Clean Air Act amendments establish specific emission limitations, which essentially require the same Maximum Achievable Control Technology as under the National Emission Standards for Hazardous Air Pollutants (NESHAP's) program, and other requirements for both new and existing solid waste incinerators. 42 U.S.C. sec. 7429. Implementation of the standards is left to the states, which must submit implementation plans for EPA approval.
Transporting Solid Waste in Coastal Water
The Shore Protection Act of 1988, 33 U.S.C. secs. 2601-2623, prohibits the transport of any municipal or commercial solid waste in coastal waters without a permit from the Department of Transportation. The Act also requires reasonable precautions in loading, securing, and offloading municipal or commercial waste, and requires the cleanup of any waste deposited in coastal wasters. 33 U.S.C. sec. 2603 . The Department of Transportation is authorized to examine vessels transporting waste and to deny entry to any place in the United States if a vessel does not have the required permit. 33 U.S.C. sec. 2605. Operating without a permit is subject to a civil penalty of up to US$10,000 per day per violation. Civil penalties up to US$25,000 per day are available for other violations of this law. 33 U.S.C. sec. 2609. The law applies to foreign vessels, to the extent allowed by international law. 33 U.S.C. sec. 2622.
The Pollution Prevention Act (PPA) has announced a national policy favoring waste reduction over waste management. 42 U.S.C. secs. 13102-13109. Under the PPA, EPA created a waste reduction program to collect and disseminate information, provide financial assistance to states, and conduct other research, training, and technical assistance programs. The PPA also required submissions of a Toxic Chemical Source Reduction and Recycling Report. 42 U.S.C. sec. 13106.
Toxic Chemical Source Reduction and Recycling Report
Under the PPA, certain industries must report: the amount of toxic chemicals entering any waste stream, the amount of the chemical which is recycled, waste reduction processes used at the facility, the amount expected to be reported in the next two years, a comparison with the amount reported in the previous year, and a comparison of the amounts treated this year and the previous year. 42 U.S.C. sec. 13106.
State Pollution Prevention Efforts
Over 20 states have adopted some type of pollution prevention program. Several states, for example, California, Massachusetts, New Jersey, and Oregon, have enacted waste reduction laws based loosely on the PPA. Each state's approach is different, but they all require use of a pollution reduction or prevention plan and periodic progress reports. See, for example, California Hazardous Waste Source Reduction and Management Review Act of 1989, Cal. Health & Safety Code secs. 25244.12-25244.25; Massachusetts Toxics Use Reduction Act, Mass. Gen. L. ch. 21I, secs.1-23; New Jersey's Pollution Prevention Act, N.J. Rev. Stat. secs. 13:1D-35 to 13:1D-50; Oregon's Toxics Use Reduction and Hazardous Waste Reduction Act, Or. Rev. Stat. secs. 465.003 to 465.034.
There is no federal recycling requirement for most solid waste. States and local governments have established recycling programs for certain wastes, most commonly bottles and cans, leaded batteries, and newspapers. For example, the Mercury-Containing and Rechargeable Battery Management Act, Pub. L. No. 104-142, 110 Stat. 1329 (1996), phases out the use of mercury in batteries and provides for the collection and recycling or disposal of nickel cadmium batteries, small sealed lead-acid batteries, as well as other types of batteries.
Issues regarding the siting of solid waste landfills or incinerators are generally left to state and local land use authorities, although EPA has promulgated location restrictions for certain solid waste landfills and hazardous waste treatment storage and disposal facilities. 40 C.F.R. 127.8-257.9, 40 C.F.R. Part 258, subpart B, and 40 C.F.R. 264.18. See also 42 U.S.C. secs. 6941- 6942.
Under the 1984 RCRA amendments, EPA may require an owner/operator of a facility to clean up any solid waste management unit at the facility that contains a RCRA hazardous waste. 42 U.S.C. sec. 6924(u); 40 C.F.R. pt. 264, subpt. F.
Enforcement of the prohibition on open dumping and other requirements for the management of non-hazardous solid waste is left to the states. The federal government primarily provides financial and technical assistance for the implementation of the state solid waste management plans. 42 U.S.C. sec. 6941.
Citizen suits are allowed against any person or entity that is disposing of solid waste in an open dump. 42 U.S.C. secs. 6945, 6972. Citizens suing to enjoin practices that pose imminent and substantial endangerment must provide 90-day notice and meet certain other requirements. 42 U.S.C. sec. 6972(b)(2)(A). Other citizen suits may not be brought without first providing 60-day notice to the defendant, nor can any suit be brought if EPA or a state is already diligently prosecuting a civil action. 42 U.S.C. sec. 6972.
To be a RCRA "hazardous waste," a substance must first be a solid waste. It then must either appear on a specific list of hazardous wastes, 42 U.S.C. sec. 6921, 40 C.F.R. secs. 261.31 to 261.33, or exhibit one of four characteristics: ignitability, corrosivity, reactivity or toxicity. 40 C.F.R. secs. 261.20 to 261.24. Any mixture containing a hazardous waste is also a hazardous waste. 40 C.F.R. sec. 261.3(a)(2)(iv).
RCRA imposes specific and detailed requirements on all generators of hazardous waste as well as all persons responsible for the transport, treatment, storage or disposal of the wastes. 42 U.S.C. secs. 6901-6992k.
Generators of RCRA Wastes
Any generator of more than 100 kg/month of hazardous waste must have an EPA Hazardous Waste Identification number. Generators are responsible for determining whether their wastes are "hazardous"; they must meet temporary storage and labeling requirements for hazardous wastes on their facilities; and they must transport or dispose of all hazardous wastes within 90 days. 40 C.F.R. pt. 262. Hazardous wastes transported offsite must be accompanied by a hazardous waste manifest bearing the generator's identification number and signed by the generator. The manifest must identify the initial transporter and ultimate site for the waste's disposal. A copy of the manifest must be taken by the transporter to the disposal site, signed by the operator of the disposal site, and returned to the generator. 40 C.F.R. pt. 262, subpt. B. Generators must submit biennial reports containing the amount, type and ultimate disposal method and location of their wastes. They must retain copies of the manifests, reports and any test results for at least three years. 40 C.F.R. secs. 262.40-262.41. Small-quantity generators (less than 100 kg/month) that meet certain other requirements are largely exempt from the RCRA hazardous waste requirements. 40 C.F.R. sec. 261.5.
Transporters must not accept any hazardous waste unaccompanied by a complete hazardous waste manifest. The transporter must sign and return the manifest to the generator before leaving the property, and must obtain the signature of the owner or operator of the disposal facility or in certain cases the next transporter. The transporter must retain the manifests for three years. The transporter must deliver the waste to the facility or the alternate facility designated by the generator on the manifest. 40 C.F.R. pt. 263. In the case of discharges or spills during transport, the transporter must notify the National Response Center; provide a written report to the Office of Hazardous Materials Regulations of the Department of Transportation, 49 C.F.R. sec. 171.16; and/or notify the Coast Guard as required by 33 C.F.R. sec. 153.203. See also Section 22.5: Transportation of Hazardous Materials.
Treatment, Storage and Disposal Facilities
If hazardous wastes are stored beyond the 90-day accumulation period (except in the case of a small-quantity generator), or if they are treated or disposed of on-site, the facility is considered a treatment, storage or disposal (TSD) facility and is subject to what are probably the most extensive operating requirements of any U.S. environmental law. Certain general standards apply to all TSD facilities. 42 U.S.C. sec. 6924. These include requirements for: obtaining a hazardous waste identification number; analyzing wastes; securing the facility from unauthorized entry; conducting regular inspections to look for leaks or defects; separating ignitable, reactive or incompatible wastes; and preparing for emergencies, including adopting a contingency plan and emergency procedures. 40 C.F.R. pt. 264. All TSD facility operators must sign the manifest accompanying any hazardous waste, and return a copy of the manifest to the generator of the waste. This completes the manifest's paper trail from generation to disposal. TSD facilities must maintain a detailed operating record for their facility and must submit a biennial report to the EPA describing the quantity and type of wastes handled. Other required reports include, for example, reports about unmanifested waste, reports of any releases, fires or explosions, and facility closure reports. 40 C.F.R. pt. 264, subpt. E.
Every TSD facility must have an operating permit or be operating under "interim status" applicable to facilities awaiting decision on their permit application. 40 C.F.R. pt. 265. Specific performance and technical standards apply to each type of facility, including containerized storage facilities, 40 C.F.R. pt. 264, subpt I; tank systems, 40 C.F.R. pt. 264, subpt. J; surface impoundments, 40 C.F.R. pt. 264, subpt. K; waste piles, 40 C.F.R. pt. 264, subpt.L; land treatment facilities, 40 C.F.R. pt. 264, subpt. M; landfills, 40 C.F.R. pt. 264, subpt. N; and incinerators, 40 C.F.R. pt. 264, subpt. O. Land disposal of most untreated hazardous wastes is banned.
Corrective action and groundwater monitoring
RCRA regulations provide a detailed set of standards for detecting releases through groundwater monitoring at TSD facilities and for cleaning up any contamination. 42 U.S.C. sec. 6924(p) , (v); 40 C.F.R. pt. 264. Groundwater protection standards applicable to TSD facilities require that an aquifer be cleaned up to background levels, national drinking water standards under the Safe Drinking Water Act, 42 U.S.C. secs. 300f to 300j-26, or alternative concentration levels set by EPA. Facilities are required to take corrective action at any sites above the groundwater protection standards. 40 C.F.R. sec. 264.100.
Closure and Post-closure Requirements
RCRA regulations require TSD owners to submit a written closure plan for each hazardous waste management unit on the facility. The closure plan must minimize the release of hazardous constituents after closure. In addition, specific closure requirements apply to each type of TSD facility. Closure takes one of two forms: either the facilities can try to "clean close," which means all residues or hazardous constituents are removed, or the facilities must implement post-closure care. Post-closure care typically includes continued groundwater monitoring and corrective action; maintenance of any caps, liners, covers, or leachate collection systems; and maintenance of security at the facility. 40 C.F.R. sec. 264.228. To ensure that all closure and post-closure activities will be implemented, TSD facilities must demonstrate financial responsibility either through a trust fund, surety bond, letter of credit, or insurance, or by meeting self-insurance standards.
Exports and Imports of Hazardous Wastes
Exports of hazardous waste are prohibited unless the exporter has notified EPA at least 60 days in advance; the receiving country has consented to accept the hazardous waste; a copy of the EPA Acknowledgment of Consent accompanies the waste; and the shipment conforms to the terms of the receiving country's acceptance. The exporters must also comply with all standards relating to hazardous waste transport. 40 C.F.R. pt. 262, subpt. E. Importers of hazardous waste are treated essentially as generators for purposes of the RCRA regulations. The international movement of wastes regulated as hazardous under RCRA and subject to the manifesting requirements, between the U.S. and the OECD (Organization for Economic Cooperation and Development) countries, excluding Mexico and Canada, are controlled by a graduated system of procedural and substantive controls based on whether a waste is deemed "green", "amber", or "red". Separate bilateral agreements control regarding Mexico and Canada. See also Sections 25.9: Agreements Relating to the Management of Wastes; and Section 25.3: General Agreements Relating to the Protection of the Environment.
The states retain authority to impose stricter requirements on hazardous waste management facilities. 42 U.S.C. sec. 6929. Many states are also delegated some or all of the authority to enforce RCRA. 40 C.F.R. pt. 271. In all states, both federal and state requirements must be consulted.
Generators of hazardous waste must include in their biennial report a description of efforts taken to reduce the volume or toxicity of their wastes as well as any actual reduction achieved. 40 C.F.R. sec. 262.41(a)(6), (a)(7). See also Section 12.3: Radioactive Wastes.
RCRA TSD facilities must not be located within 200 feet of certain earthquake faults. Facilities located within 100-year floodplains must meet certain specific requirements to ensure the wastes can be moved before flood waters reach them. Noncontainerized disposal of RCRA wastes is not allowed in salt domes or bed formations, underground mines or caves. 40 C.F.R. sec. 264.18. State and local siting requirements can be, and frequently are, stricter than the federal requirements. 42 U.S.C. sec. 6929.
The 1984 RCRA Amendments authorized EPA to require hazardous waste facilities to clean up releases of hazardous waste or hazardous waste constituents from any solid waste management unit at the facility, regardless of whether the unit contains a RCRA hazardous waste. 42 U.S.C. secs. 6924-6925; 40 C.F.R. pt. 264, subpt. F. All RCRA hazardous wastes are also hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. secs. 9601-9675. See Section 13: Responding to Environmental Contamination. EPA can also issue orders requiring corrective actions at facilities that are operating under interim permits. 42 U.S.C. sec. 6928(h) .
Inspection and monitoring
EPA has broad inspection and information collection powers to administer and enforce the RCRA at sites that handle hazardous wastes. 42 U.S.C. sec. 6927. EPA is under a specific requirement to inspect private hazardous waste facilities every two years and federally owned facilities every year. 42 U.S.C. sec. 6927. EPA may also order monitoring, analyses or testing, or conduct such tests if there is no owner or operator of the facility.
EPA has three basic enforcement avenues available: issuing an administrative order requiring compliance, commencing a civil action to collect penalties or obtain an injunction, and bringing a criminal action. 42 U.S.C. sec. 6928. Both civil and administrative penalties may be up to US$25,000 per day per violation. EPA must provide the violator with an opportunity for a public hearing. 42 U.S.C. sec. 6928(b). A federal facility that is issued an administrative enforcement order must be permitted the opportunity to confer with the EPA administrator before an administrative order is deemed "final". Knowing violations of the RCRA hazardous waste requirements subject violators to criminal penalties of up to US$50,000 per day per violation and/or up to five years imprisonment. 42 U.S.C. sec. 6928(d). Fines for knowingly endangering the life or health of another person can lead to fines of up to US$1,000,000 for corporations and fines up to US$250,000 and/or imprisonment of up to fifteen years for individuals. 42 U.S.C. sec. 6928(e). In some circumstances, EPA employees may be deputized as U.S. marshals to investigate criminal violations of the hazardous or solid waste laws. 42 U.S.C. sec. 6979b.
In 1996, the EPA and the U.S. Customs Service signed a Memorandum of Understanding (MOU) strengthening their cooperative working relationship in an effort to reduce the amount of hazardous waste illegally entering the United States.
Imminent and Substantial Endangerment
EPA has specific powers to issue an administrative order or bring a civil suit to compel past or present hazardous waste operators to respond to any "imminent and substantial endangerment" to health or the environment. 42 U.S.C. sec. 6973. Notice must be given to the state, and the public must be notified and given an opportunity to comment on any proposed settlement. 42 U.S.C. sec. 6973(c), (d). Violators of any order can be fined up to US$5,000 for each day of violation. 42 U.S.C. sec. 6973(b). EPA retains almost complete discretion to negotiate and settle its civil or administrative enforcement actions. Actual fines are calculated according to specific penalty policies or guidelines issued by EPA. Factors considered typically include, among other things, the severity, frequency and duration of the violation. Settlements also typically include a consent order creating a specific timetable for compliance and stipulated penalties for violations of the consent order.
State and Local Enforcement
Each state has authority to enforce state laws and regulations. 42 U.S.C. sec. 6929. States may also be authorized to implement and enforce the federal hazardous waste management program within that state. 42 U.S.C. sec. 6926. In authorized states, state hazardous waste laws and regulations in the authorized state program may be as stringent or stricter than the federal rules, and any state permit or order will be given the same force and effect as a federal action. 42 U.S.C. sec. 6926(d). EPA must also notify any authorized state prior to beginning a court action or issuing an administrative order to enforce the hazardous waste laws in that state. 42 U.S.C. sec. 6928(a)(2).
Citizen suits are allowed against any person or entity: to enforce any permit, order, or regulation issued under the hazardous waste provisions; to enjoin any handling of hazardous waste that presents an imminent and substantial endangerment to health; or to force the EPA to carry out any non-discretionary duty. 42 U.S.C. sec. 6972. Citizens suing to enjoin practices that pose imminent and substantial endangerments must provide 90-day notice and meet certain other requirements. 42 U.S.C. sec. 6972(b)(2)(A). Other citizen suits may not be brought without first providing 60-day notice to the defendant nor can any suit be brought if EPA or a state is already diligently prosecuting a civil action. 42 U.S.C. sec. 6972.
Most radioactive waste is categorized as either low-level or high-level radioactive waste. High-level radioactive waste includes spent nuclear fuel and certain other wastes. Low-level radioactive waste is any radioactive material that is not high-level radioactive waste, spent nuclear fuel, or byproduct material. 42 U.S.C. sec. 2021b(9). One byproduct material, uranium mill tailings, is regulated separately under the Uranium Mill Tailings Radiation Control Act of 1977 (UMTRCA), Pub. L. No. 95-604, 92 Stat. 3021 (codified in scattered sections of 42 U.S.C.).
High-Level Radioactive Waste
High-level radioactive waste includes spent nuclear fuel and certain other wastes. The Nuclear Waste Policy Act of 1982 (NWPA), 42 U.S.C. secs. 10101-10225, established a process for permanently disposing of high-level radioactive waste. The NWPA: established a formal policy favoring the permanent disposal of spent nuclear fuel in geologic repositories; set a schedule for siting, constructing and operating at least one high-level waste repository; provided for a limited amount of emergency interim storage; developed a schedule for constructing a monitored retrievable storage (MRS) facility; and, established a fund to cover nuclear waste disposal costs paid by user fees on nuclear power. The NWPA granted primary responsibility for developing disposal technology and evaluating potential sites to the Department of Energy (DOE). DOE issued final guidelines for evaluating sites according to such factors as population density, geology, hydrogeology, proximity to national parks, and cost of transport. 10 C.F.R. sec. 960.1. The Nuclear Regulatory Commission (NRC) retained authority over construction, operation, closure, and decommissioning of nuclear waste repositories. 42 U.S.C. sec. 10141(b)(1)(A). EPA is responsible for setting maximum emission limits, containment standards, and individual exposure limits. The repository must meet these standards. 40 C.F.R. pt. 191.
Low-Level Radioactive Waste
Low-level radioactive waste includes any radioactive material that is not high-level radioactive waste, spent nuclear fuel, or byproduct material. 42 U.S.C. sec. 2021b(9). Under the Low-Level Radioactive Waste Policy Act of 1980, 42 U.S.C. sec. 2021b-d, each state is responsible for disposing of its low-level radioactive waste (unless generated by a federally-owned facility). The statute also encourages states to form regional compacts for the disposal of their low-level waste. 42 U.S.C. sec. 2021d. Acceptable disposal methods include burial at a facility licensed by the Nuclear Regulatory Commission, incineration, and ocean disposal with an EPA permit under the Marine Protection, Research and Sanctuaries Act of 1972. Because state governments failed to ensure capacity for disposal of low-level waste, the 1980 Act was amended in 1985 by the Low-Level Radioactive Waste Policy Amendments Act, Pub. L. No. 99-240, 99 Stat. 1842 (1986) (incorporated at 42 U.S.C. sec. 2021b). The 1985 amendments provided a stricter timetable for states to develop waste capacity and established a series of incentives and disincentives for failing to comply.
The UMTRCA, 42 U.S.C. secs. 7901-7942, is designed to provide for the environmentally sound stabilization, disposal, and control of radioactive uranium mill tailings located at active and inactive mill operations. The statute provides for the assessment and remediation of mill tailings sites, and the regulation of mill tailings during processing at active mill operations. The NRC has authority to license mill operations and to enforce technical and other requirements, which must meet ambient standards for radioactive pollutants set by EPA. 40 C.F.R. pt. 192 (EPA standards); 10 C.F.R. pt. 40, App. A (NRC criteria for licensing mill operators).
Siting of radioactive wastes sites is particularly controversial. The Nuclear Waste Policy Act of 1982 (NWPA), 42 U.S.C. secs. 10101-10225, established an elaborate process for evaluating and selecting a permanent disposal site for high-level radioactive wastes. The NWPA granted primary responsibility for selecting potential sites to the Department of Energy (DOE). DOE issued final guidelines for evaluating sites according to such factors as population density, geology, hydrogeology, proximity to national parks, and cost of transport. 10 C.F.R. sec. 960.1.
Given the technical and political difficulties in siting a permanent high-level waste repository, the 1982 Nuclear Act was amended in 1987 by the Nuclear Waste Policy Amendments Act, Pub. L. No. 100-203, 101 Stat. 1330-227 (1987) (incorporated at U.S.C. secs. 10101-10270). The 1987 amendments required the DOE to characterize one specific site, located at Yucca Mountain, Nevada, to determine whether the site is suitable for disposal of nuclear waste. While the findings of a team of geologists and geophysicists who studied the area said that the site may be more unstable than previously thought, DOE is still on track to deliver its viability assessment in 1998 and expects to have a potential site recommendation in 2001. If Yucca Mountain is approved as a repository, it would be open by 2010. The amendments also increased incentives for states or Indian tribes to accept the interim MRS facilities. Furthermore, the amendments established the Nuclear Waste Technical Review Board and established the Office of the Nuclear Waste Negotiator, which is charged with negotiating with states or Indian tribes willing to host a repository or MRS facility.
The Low-Level Radioactive Waste Policy Act of 1980, 42 U.S.C. 2021b-d left primary responsibility to each state for selecting sites for disposal of low-level radioactive waste. States are encouraged to form regional compacts for the disposal of low-level waste. 42 U.S.C. sec. 2021d.
The Atomic Energy Act (AEA) imposes a civil penalty of up to US$100,000 for each violation of any licensing provision or any related regulation. 42 U.S.C. secs. 2282-2282a. The AEA has no citizen enforcement provisions. In fact, the sole authority to enforce the civil penalty provisions of the AEA rests with the U.S. Attorney General. 42 U.S.C. sec. 2282(c). The AEA also includes a set of detailed criminal provisions, which provide a range of monetary penalties and terms of imprisonment, depending on the type of violation. Most criminal violations are subject to fines ranging from US$5,000 to US$50,000 and imprisonment from two to ten years, unless the violations were committed with an intent to harm the United States or to favor a foreign nation, in which case there may be no limit on the potential term of imprisonment. 42 U.S.C. secs. 2272-2276.